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Adoption of Children Act 1949

1949 CHAPTER 98

An Act to amend the law relating to the adoption of children; and for related purposes.

[16th December 1949]

Be it enactedby the King's most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1Scope of power to make adoption orders

(1)It is hereby declared that the power to make adoption orders conferred by the Adoption of Children Act, 1926 (hereinafter referred to as " the principal Act"), includes and has always included power to make an adoption order authorising the adoption of an infant by the mother or father of the infant, either alone or jointly with her or his spouse.

(2)An adoption order may be made in respect of an infant resident in England or in Wales who is not a British subject; and accordingly paragraph (b) of subsection (5) of section two of the principal Act shall have effect as if the words " both a British subject and " were omitted.

2Restrictions on making of adoption orders

(1)An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants—

(a)has attained the age of twenty-five and is at least twenty one years older than the infant in respect of whom the application is made ; or

(b)has attained the age of twenty-one and is a relative of the infant; or

(c)is the mother or father of the infant."

(2)Subsection (1) of section two of the principal Act shall cease to have effect.

3Consent to adoption

(1)An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant:

Provided that the court may dispense with any consent required by this subsection if it is satisfied—

(a)in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant;

(b)in the case of a person liable as aforesaid to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;

(c)in any case, that the person whose consent is required cannot be found, or is incapable of giving his consent or that his consent is unreasonably withheld.

(2)The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.

(3)Where any person whose consent to the making of an adoption order is required by this section does not attend in the proceedings for the purpose of giving it, a document signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named or otherwise described in the document, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings ; and where any such document is attested by a justice of the peace (or, if executed outside the United Kingdom, by a person of any such class as may be prescribed by rules made under the principal Act), the document shall be admissible as aforesaid without further proof of the signature of the person by whom it is executed:

Provided that a document signifying the consent of the mother of an infant shall not be admissible as aforesaid unless—

(a)the infant is at least six weeks old on the date of the execution of the document; and

(b)the document is attested on that date by a justice of the peace or, as the case may be, by a person of a class prescribed "as aforesaid.

(4)While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant.

(5)For the purposes of subsection (3) of this section, a document purporting to be attested as mentioned in that subsection shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved.

(6)Subsection (3) of section two of the principal Act shall cease to have effect.

4Evidence of paternity

(1)Where in connection with any application for an adoption order any question arises as to the paternity of an infant, and, in order to decide that question, it is relevant to determine whether marital intercourse took place between a husband and his wife during a particular period, evidence that such intercourse did not take place may be given in the proceedings on the application by either of the parties concerned.

(2)A person who has given such evidence as aforesaid in any proceedings by virtue of this section may give the like evidence in any subsequent proceedings of whatever nature in which that evidence is relevant.

5Probationary period

(1)After the expiration of three months from the commencement of this Act an adoption order shall not be made in the case of any infant unless—

(a)the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order; and

(b)the applicant has, at least three months before the date of the order, notified the welfare authority for the area in which he is for the time being resident of his intention to apply for an adoption order in respect of the infant.

(2)An interim- order under section six of the principal Act shall not be made in any case where the making of an adoption order would be unlawful by virtue of the last foregoing subsection.

(3)Where, under subsection (1) of this section, notice is given to the welfare authority in respect of an infant who is not over compulsory school age, subsections (5) to (7) and (10) of section seven of the Adoption of Children (Regulation) Act, 1939 (hereinafter referred to as " the Act of 1939 "), shall, notwithstanding anything in that section or in section thirty-seven of the Children Act, 1948, but subject to the provisions of subsection (2) of the said section seven, apply in relation to the infant and the person by whom the notice is given as they apply in relation to an adopted child and an adopter within the meaning of that section.

(4)Any notice under this section may be served by post.

6Arrangements made by adoption societies

(1)In any case where, but for this section, a child would be required under section six of the Act of 1939 to be returned by an adopter to, and to be received by, an adoption society, it shall be sufficient compliance with those requirements if the child is delivered by the adopter to and received by a suitable person nominated for the purpose by the society.

(2)So much of subsection (2) of the said section six as prohibits the making of an application for an adoption order in respect of a child until the expiration of a period of three months from the date on which the child is delivered to the adopter pursuant to arrangements made by an adoption society shall cease to have effect.

(3)The period within which, under subsection (3) of the said section six, an adopter is required to apply for an adoption order or give notice to the adoption society of his intention not to apply for such an order shall be six months from the expiration of the period specified in subsection (2) of the said section six instead of three months from the expiration of that period.

7Local authorities

(1)For the purposes of the principal Act and the Act of 1939, the expression " local authority " shall mean the council of any county or county borough ; and accordingly the definition of " local authority " in subsection (2) of section sixteen of the Act of 1939 shall cease to have effect.

(2)For the removal of doubt it is hereby declared that every such local authority as aforesaid has power in connection with their functions under any enactment relating to children to make and participate in arrangements for the adoption of children.

(3)Where any such local authority has established a children's committee, subsections (2) and (3) of section thirty-nine of the Children Act, 1948 (which provide for the discharge by local authorities of certain of their functions through children's committees), shall apply in relation to any exercise of the power mentioned in the last foregoing subsection as they apply in relation to the discharge of the functions specified in subsection (1) of the said section thirty-nine.

8Citizenship of adopted children

Where an adoption order is made in respect of an infant who is not a citizen of the United Kingdom and Colonies, then, if the adopter or, in the case of a joint adoption, the male adopter, is a citizen of the United Kingdom and Colonies, the infant shall be a citizen of the United Kingdom and Colonies as from the date of the order.

9Treatment of adopted persons as children of adopters for purposes of intestacies, wills and settlements

(1)The provisions of this and the next following section shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property.

(2)Where, at any time after the making of an adoption order the adopter or the adopted person or any other person dies intestate in respect of any real or personal property (other than property subject to an entailed interest under a disposition made before the date of the adoption order) that property shall devolve in all respects as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.

(3)In any disposition of real or personal property made, whether by instrument inter vivos or by will (including codicil), after the date of an adoption order—

(a)any reference (whether express or implied) to the child r children of the adopter shall be construed as, or as including, a reference to the adopted person ;

(b)any reference (whether express or implied) to the child or children of the adopted person's natural parents or either of them shall be construed as not being, or as not including; a reference to the adopted person; and

(c)any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person,

unless the contrary intention appears.

(4)Where under any disposition any real or personal property or any interest in such property is limited (whether subject to any preceding limitation or charge or not) in such a way that it would, apart from this section, devolve (as nearly as the law permits) along with a dignity or title of honour, then, whether or not the disposition contains an express reference to the dignity or title of honour, and whether or not the property or some interest in the property may in some event become severed therefrom, nothing in this section shall operate to sever the property or any interest therein from the dignity, but the property or interest shall devolve in all respects as if this section had not been enacted.

(5)References in this section to an adoption order shall be construed as including references to an adoption order made before the date of the commencement of this Act; but nothing in this section shall affect the devolution of any property on the intestacy of a person who died before that date, or any disposition made before that date.

10Provisions supplementary to s. 9

(1)For the purposes of the application of the Administration of Estates Act, 1925, to the devolution of any property in accordance with the provisions of the last foregoing section, and for the purposes of the construction of any such disposition as is mentioned in that section, an adopted person shall be deemed to be related to any other person being the child or adopted child of the adopter or (in the case of a joint adoption) of either of the adopters—

(a)where he or she was adopted by two spouses jointly, and that other person is the child or adopted child of both of them, as brother or sister of the whole blood ;

(b)in any other case, as brother or sister of the half-blood.

(2)Notwithstanding any rule of law, a disposition made by will or codicil executed before the date of an adoption order shall not be treated for the purposes of the last foregoing section as made after that date by reason only that the will or codicil is confirmed by a codicil executed after that date.

(3)Notwithstanding anything in the last foregoing section, trustees or personal representatives may convey or distribute any real or personal property to or among the persons entitled thereto without having ascertained that no adoption order has been made by virtue of which any person is or may be entitled to any interest therein, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution ; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it.

(4)Where an adoption order is made in respect of a person who has been previously adopted, the previous adoption shall be disregarded for the purposes of the last foregoing section in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date.

(5)Subsection (2) of section five of the principal Act is hereby repealed.

11Other effects of adoption order

(1)For the purpose of the law relating to marriage, an adopter and the person whom he has been authorised to adopt under an adoption order, whether made before or after the commencement of this Act, shall be deemed to be within the prohibited degrees of consanguinity; and the provisions of this subsection shall continue to have effect' notwithstanding that some person other than the adopter is authorised by a subsequent order to adopt the same infant:

Provided that nothing in this subsection shall invalidate any marriage which has been solemnised before the commencement of this Act.

(2)Where an adoption order is made after the commencement of this Act in respect of an infant who is illegitimate, any affiliation order in force with respect to the infant, and any agreement whereby the father of the infant has undertaken to make payments specifically for the benefit of the infant, shall cease to have effect, but without prejudice to the recovery of any arrears which are due under the affiliation order or the agreement at the date of the adoption order:

Provided that where the infant is adopted by his mother, and the mother is a single woman, the order or agreement shall not cease to have effect by virtue of this subsection upon the making of the adoption order, but shall cease to have effect if she subsequently marries.

(3)Where an adoption order is made after the commencement of this Act in respect of an infant committed to the care of a fit person by an order in force under the Children and Young Persons Act, 1933, the last mentioned order shall cease to have effect.

(4)Where an adoption order is made after the commencement of this Act in respect of an infant in respect of whom a resolution is in force under section two of the Children Act, 1948 (which provides for the assumption by local authorities of parental rights in certain circumstances) the resolution shall cease to have effect.

12Registration of adoption orders

(1)Every adoption order made after the commencement of this Act-shall contain a direction to the Registrar General to make in the Adopted Children Register an entry in the form set out in the Schedule to this Act, and (subject to the provisions of the next following subsection) shall specify the particulars to be entered under the headings in columns 2 to 6 of that Schedule.

(2)For the purposes of compliance with the requirements of the foregoing subsection—

(a)where the precise date of the infant's birth is not proved to the satisfaction of the court, the court shall determine the probable date of his birth and the date so determined shall be specified in the order as the date of his birth ;

(b)where the name or surname which the infant is to bear after the adoption differs from his original name or surname, the new name or surname shall be specified in the order instead of the original;

and where the country of the birth of the infant is not proved to the satisfaction of the court, the particulars of that country may, notwithstanding anything in that subsection, be omitted from the order and from the entry in the Adopted Children Register.

(3)Where upon any application for an adoption order in respect of an infant (not being an infant who has previously been the subject of an adoption order) there is proved to the satisfaction of the court the identity of the infant with a child to which an entry in the Registers of Births relates, any adoption order made in pursuance of the application shall contain a direction to the Registrar General to cause the entry in the Registers of Births to be marked with the word " adopted."

(4)Where an adoption order is made in respect of an infant who has previously been the subject of an adoption order, the order shall contain a direction to the Registrar General to cause the previous entry in the Adopted Children Register to be marked with the word " re-adopted."

(5)Where an adoption order is quashed, or an appeal against an adoption order allowed, the court which made the order shall give directions to the Registrar General to cancel any marking of an entry in the Registers of Births and any entry in the Adopted Children Register which was effected in pursuance of the order.

(6)Where the Registrar General is notified by the Registrar General of Births, Deaths and Marriages in Scotland that an adoption order has been made under the Adoption of Children (Scotland) Act, 1930, in respect of an infant to whom an entry in the Registers of Births or the Adopted Children Register relates, the Registrar General shall cause the entry to be marked " adopted (Scotland)," or, as the case may be, " re-adopted (Scotland) " ; and where, after an entry has been marked in pursuance of this subsection, the Registrar General is notified as aforesaid that the adoption order has been quashed, or that an appeal against the adoption order has been allowed, he shall cause the marking to be cancelled.

(7)A copy of any entry in the Registers of Births or the Adopted Children Register the marking of which is cancelled under this section shall be deemed to be an accurate copy if and only if both the marking and the cancellation are omitted therefrom.

(8)The court by which an adoption order has been made (including, in the case of an order made by a court of summary jurisdiction, a court acting for the same petty sessional division or place) may, on the application of the adopter or of the adopted person, amend the order by the correction of any error in the particulars contained therein; and where an adoption order is so amended the prescribed officer of the court shall cause the amendment to be communicated in the prescribed manner to the Registrar General and any necessary correction of or addition to the Adopted Children Register shall be made accordingly.

(9)In the case of an adoption order made before the commencement of this Act, the power of the court under the last foregoing subsection shall include power to amend the order—

(a)by the insertion of the country of the adopted person's birth;

(b)(where the order does not specify a precise date as the date of the adopted person's birth) by the insertion of the date which appears to the court to be the date or probable date of his birth ;

and the provisions of that subsection shall have effect accordingly.

(10)Subsections (2) and (3) of section eleven of the principal Act, and the Schedule to that Act, shall cease to have effect; and subsection (5) of the said section eleven (which relates to certified copies of entries in the Adopted Children Register) shall have effect as if after the words " the date of the birth " in both places where those words occur in paragraph (b) of the subsection, there were inserted the words

“or the country of the birth”.

13Definition of " relative "

(1)For the purposes of this Act, the expression "relative ", in relation to an infant, means a grandparent, brother, sister, uncle or aunt, whether of the full blood, of the half-blood or by affinity, and includes—

(a)where an adoption order has been made in respect of the infant or any other person, any person who would be a relative of the infant within the meaning of this definition if the adopted person were the child of the adopter born in lawful wedlock ;

(b)where the infant is illegitimate, the father of the infant and any person who would be a relative of the infant within the meaning of this definition if the infant were the legitimate child of its mother and father.

(2)The definition contained in the last foregoing subsection shall be substituted for the definition of

“relative”in the following enactments, that is to say subsection (2) of section sixteen of the Act of 1939, section two hundred and twenty of the Public Health Act, 1936, subsection (3) of section two hundred and seventy-two of the Public Health (London) Act, 1936, subsection (1) of section fifty-nine of the Children Act, 1948, and subsection (2) of section thirteen of the Nurseries and Child-Minders Regulation Act, 1948, and for the definition of " relatives " in subsection (2) of section eleven of the Children and Young Persons (Scotland) Act, 1937.

14Interpretation and construction

(1)In this Act the following expressions have the meanings hereby respectively assigned to them, that is to say—

"adoption order" means an order under section one of the principal Act and includes, in sections eight, nine, ten, eleven and thirteen of this Act, an order authorising an adoption under the Adoption of Children (Scotland) Act, 1930, or the Adoption of Children Act (Northern Ireland), 1929, or any enactment of the Parliament of Northern Ireland for the time being in force;

" adoption society " and " welfare authority " have the same meanings as in the Act of 1939 ;

" compulsory school age " has the same meaning as in the Education Act, 1944;

" father ", in relation to an illegitimate infant, means the natural father.

(2)Any reference in this Act to any enactment shall be construed as a reference to that enactment as amended by any subsequent enactment.

(3)Subsection (3) of section sixteen of-the Act of 1939 (which makes special provision with respect to the application of section seven of that Act to London) shall have effect as if the reference therein to the said section seven included a reference to section five of this Act.

(4)This Act shall be construed as one with the principal Act.

15Application to Scotland

This Act shall in its application to Scotland have effect subject to the following modifications:—

(a)for any reference to the Adoption of Children Act, 1926, there shall be substituted a reference to the Adoption of Children (Scotland) Act, 1930; for any reference to the Children and Young Persons Act, 1933, there shall be substituted a reference to the Children and Young Persons (Scotland) Act, 1937; for any reference to an infant there shall be substituted a reference to a child; for references to compulsory school age and to the Education Act, 1944, there shall-be substituted references to school age and to the Education (Scotland) Act, 1946 ; and for any reference to an affiliation order there shall be substituted a reference to a decree of affiliation and aliment;

(b)for subsection (2) of section one of this Act there shall be substituted the following subsection :—

“(2)An adoption order may be made in respect of a child resident in Scotland who is not a British subject, and accordingly subsection (5) of section two of the Adoption of Children (Scotland) Act, 1930, shall have effect as if for paragraph (b) there were substituted the following paragraph:—

' (b) in respect of any child who is not resident in Scotland.'”;

(c)subsection (1) of section three of this Act shall have effect as if after the words " maintenance of the infant " where these words first occur there were inserted

“and except with the consent of the infant, if a minor”

and as if after the word " subsection " there were inserted

“except the consent of an infant”

; in subsection (2), after the word " person " where that word first occurs, there shall be inserted the words

“other than the consent of an infant”;

and in subsection (3), for the words " admissible as evidence " there shall be substituted the words

“sufficient evidence”, and for the words " admissible as aforesaid " the words " sufficient evidence as aforesaid ", for any reference to rules there shall be substituted a reference to an Act of Sederunt and any reference to a justice of the peace shall include a reference to the sheriff ;

(d)for subsection (1) of section seven of this Act there shall be substituted the following subsection:—

“(1)For the purposes of the Adoption of Children (Scotland) Act, 1930, and the Act of 1939 the expression ' local authority' means the council of a county or a large burgh within the meaning of the Local Government (Scotland) Act, 1947, and any small burgh within the meaning of that Act shall be included in the county in which it is situate.”;

(e)sections nine and ten of this Act shall not affect the law of Scotland relating to the distribution of the moveable estate of a person dying domiciled in Scotland or the devolution of heritable property situated in Scotland;

(f)for section twelve of this Act there shall be substituted the following section—

“(1)Every adoption order made after the commencement of this Act shall contain a direction to the Registrar General of Births, Deaths and Marriages in Scotland (hereinafter referred to as ' the Registrar General for Scotland ') to include in the entry in the Adopted Children Register the country of the birth of the child; and accordingly column 2 of the Schedule to the principal Act shall have effect as if the heading to that column were omitted and there were inserted the words ' Date and Country of Birth,'

(2)For the purposes of compliance with the requirements of subsection (2) of section eleven of the principal Act where the precise date of the child's birth is not proved to the satisfaction of the court, the court shall determine the probable date of his birth arid the date so determined shall be specified in the order as the date of his birth; and where the country of the birth of the child is not proved to the satisfaction of the court, the particulars of that country may, notwithstanding anything in that subsection, be omitted from the order and from the entry in the Adopted Children Register.

(3)Where upon any application for an adoption order in respect of a child (not being a child who has previously been the subject of an adoption order) there is proved to the satisfaction of the court the identity of the child with a child to which an entry in the Register of Births, Deaths and Marriages relates, any adoption order made in pursuance of the application shall contain a direction to the Registrar General for Scotland to cause the entry in the Register of Births, Deaths and Marriages to be marked with the word' adopted.'

(4)Where an adoption order is made in respect of a child who has previously been the subject of an adoption order, the order shall contain a direction to the Registrar General for Scotland to cause the previous entry in the Adopted Children Register to be marked with the word ' re-adopted '.

(5)Where an adoption order is quashed, or an appeal against an adoption order allowed, the court which made the order shall give directions to the Registrar General for Scotland to cancel any marking of an entry in the Register of Births, Deaths and Marriages, and any entry in the Adopted Children Register which was effected in pursuance of the order.

(6)Where the Registrar General for Scotland is notified by the Registrar General that an adoption order has been made under the Adoption of Children Act, 1926, in respect of an infant to whom an entry in the Register of Births, Deaths and Marriages or the Adopted Children Register maintained by the Registrar General for Scotland relates, the Registrar General for Scotland shall cause the entry to be marked ' adopted (England and Wales)' or, as the case may be 're-adopted (England and Wales)'; and where after an entry has been marked in pursuance of this subsection the Registrar General for Scotland is notified as aforesaid that the adoption order has been quashed, or that an appeal against the adoption order has been allowed, he shall cause the marking to be cancelled.

(7)An extract of an "entry in the Register of Births, Deaths and Marriages or the Adopted Children Register maintained by the Registrar General for Scotland the marking of which is cancelled under this section shall be deemed to be an accurate extract if and only if both the marking and the cancellation are omitted therefrom.

(8)The court by which an adoption order has been made may, on the application of the adopter or of the adopted person amend the order by the correction of any error in the particulars contained therein ; and where an adoption order is so amended the clerk of the court shall cause the amendment to be communicated in the prescribed manner to the Registrar General for Scotland and any necessary correction of or addition to the Adopted Children Register shall be made accordingly.

(9)In the case of an adoption order made before the commencement of this Act, the power of the court under the last foregoing subsection shall include power to amend the order—

(a)by the insertion of the country of the adopted person's birth;

(b)(where the order does not specify a precise date as the date of the adopted person's birth) by the insertion of the date which appears to the court to be the date or probable date of his birth;

and the provisions of that subsection shall have effect accordingly.

(10)Subsection (4) of section eleven of the principal Act shall cease to have effect; and subsection (6) of the said section eleven (which relates to extracts of entries in the Adopted Children Register) shall have effect as if after the words 'the date of the birth,' in both places where those words occur in paragraph (b) of the subsection, there were inserted the words ' or the country of the birth '”;

(g)in section fourteen, for the definition of "adoption Order" there shall be substituted the following definition:— “' adoption order ' means an order under section one of the principal Act and includes in sections eight, eleven and thirteen of this Act, an order authorising an adoption under the Adoption of Children Act, 1926, or the Adoption of Children Act (Northern Ireland), 1929, Or any enactment of the Parliament of. Northern Ireland for the time being in ' force

16Short title, commencement and extent

(1)This Act may be cited as the Adoption of Children Act, 1949.

(2)This Act and the principal Act and the Act of 1939 may be cited together as the Adoption of Children Acts, 1926 to 1949; and this Act and the Adoption of Children (Scotland) Act, 1930, and the Act of 1939 may be cited together as the Adoption of Children (Scotland) Acts, 1930 to 1949.

(3)This Act shall come into operation on the first day of January, nineteen hundred and fifty.

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